June 30

Search Warrant Required for Blood Tests in DUI Cases

The U.S. Supreme Court ruled on June 23, 2016 that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Birchfield v. North Dakota, 579 U.S. ___ (2016).

In Vermont, this ruling will immediately affect DUI-Drug cases where the police try to collect a blood sample after a DRE exam to test for the presence of drugs other than alcohol, and criminal refusal cases where the driver refuses to give a blood sample. Vermont imposes criminal penalties on motorists with prior DUI convictions who refuse to submit to a blood test.

In light of the Supreme Court’s decision in Birchfield, the standard advisory given to drivers in Vermont to obtain their consent to a blood test is inaccurate under the Fourth Amendment. Under existing Vermont case law, this constitutes a “flaw in the procedure,” arguably requiring suppression of any blood test result, or any refusal of the blood test, as evidence at trial, unless the police obtain a search warrant to collect a blood sample.


July 3

Search Warrant Required to Search Mobile Phones

The U.S. Supreme Court, in Riley v. California, ruled that the police must first obtain a warrant before searching a mobile phone seized during the arrest of a suspect. The court left open the possibility that the police might lawfully examine the data on a phone in an emergency situation on a case-by-case basis (exigent circumstances exception to the warrant requirement). The decision left unresolved the legality of the police use of technology such as “Stringray,” that allows the police to intercept cell phone signals by masquerading as a cell phone tower — an International Mobile Subscriber Identity locator, or “IMSI catcher.” A Wall Street Journal article has an explanation of the device.